A Conscience Clause for Equal Protection

Earlier this month, Pennsylvania Attorney General Kathleen Kane announced she wouldn’t defend the state in an ACLU lawsuit challenging a ban on same-sex marriage. She’s following the same trail blazed by California, where state officials refused to appeal a district court ruling against the discriminatory Proposition 8. It cheers me enormously to see that more and more government officers are coming to recognize the fundamental injustice of these laws, and refusing to defend them where they still stand.

I’ve often said that people who have religious objections to performing a job are free not to take that job, but they’re not free to take the job and then refuse to perform it. And I think that principle still holds. Can I consistently believe this and still cheer on the government officials who refuse to defend unjust laws?

I’m open to arguments either way on this, but I see two important reasons that differentiate this case and make an attorney general unlike a pharmacist or a town registrar.

First of all, defending the state in a lawsuit like this one is a job requiring active and creative advocacy. Attorney General Kane isn’t being asked to mechanically stamp a form, recite a script, or ring up an order at a cash register. She’s being asked to think, to come up with reasons why the marriage ban is constitutional, to marshal arguments in its favor. If she genuinely doesn’t believe that the law is constitutionally valid, I don’t think she can or should be compelled to do that. The analogous scenario would be to ask an anti-choice pharmacist, not just to sell Plan B, but to compose a persuasive speech for customers about why they should buy it.

And it’s hard to see why antis would object to this in any case. Would they really want her to defend this law in open court, knowing she doesn’t believe in it herself? Wouldn’t they be worried (and rightfully so, in my opinion) that a person in those circumstances might not offer the most vigorous and effective case possible? (With her bowing out, Pennsylvania’s Republican governor Tom Corbett will be able to pick someone to defend the law in her stead.)

Second, there’s a balance-of-powers argument to be made here. The attorney general in Pennsylvania, as in most states, isn’t a mere rubber-stamping servant of the governor or the legislature. It’s a separate elected position, whose duties explicitly include advising the other branches of state government as to what the law and the constitution does and doesn’t permit. It’s reasonable and customary for attorneys general to push back when they believe that the government is misusing its power.

The law is clear: doctors can and should be free to exercise their professional judgment in deciding what treatment is medically appropriate; but they cannot arbitrarily deny treatment based on medically irrelevant characteristics of the patient.

This principle still applies here, because it is part of the attorney general’s job to use their professional judgment to decide what’s constitutionally appropriate. Kathleen Kane isn’t basing her refusal to defend the state’s gay-marriage ban on legally irrelevant facts, such as not liking the fashion sense of the legislators who voted for it. She’s basing it on her professional opinion that laws denying recognition to same-sex couples violate the equal-protection guarantees of the Pennsylvania and U.S. Constitutions.